https://www.tabletmag.com/sections/arts-letters/articles/is-the-constitution-pro-slavery
Paul Berman’s belated review in Tablet of Sean Wilentz’s last book, on the question of slavery’s place—its rhetorical weight, its legal scope, its political consequences—in the making of the US Constitution reminds me of James Oakes’s more recent inquiry into the second act of the same drama, the actual crafting of an anti-slavery document from constitutional clauses, a project undertaken by abolitionists (and others) in the mid-19th century.
Oakes's book, The Crooked Path to Abolition (2022), is the better of the two, I think, because it gets at what Berman is trying to extract from Wilentz toward the end of the review—that the schizophrenic character of the American experiment is written in the user's manual of our political theory and practice, that old Constitution, and so is forever inscribed on our very souls, whether we acknowledge it (them) or not.
Not even the Civil War and the Reconstruction Amendments could erase this schizophrenia—witness Jim Crow and its second coming in our own time—and nothing will, not until we realize that the conflict between the two Constitutions, which now takes the rhetorical and jurisprudential form of an irrepressible conflict between capitalism and socialism, is not irreconcilable, simply because capitalism and socialism are not.
Consider the 14th Amendment, which boils the inchoate anti-slavery Constitution down to its essentials by seizing on the word “person” as it was written in the original, as in “three-fifths of all other persons” in apportioning representation by Congressional district, that is, counting slaves as persons—not livestock or inanimate objects—in calculating the population of the states. Here’s the text of Section 1:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The first sentence is an unmistakable repudiation of the infamous Dred Scott decision by SCOTUS (1857), which held that those of African descent dwelling in the US were not and never could become citizens. The second sentence is the source of most 20th- century thinking about how to make African-Americans (et al.) the equals of all other citizens, which is to say actually, substantially equal at the law and in their access to opportunities to attain both social standing and mobility.
So, you’d think that was that—we had abolished slavery with the 13th Amendment and then, with the 14th, we had equipped the freedmen and women with all they needed to become self-made, prosperous citizens. But that Amendment, which is called “everyman’s constitution” for good reason, has been a point of contention since the 1870s, and is still at the center of debate about, well, about everything constitutional, from the social standing of corporations—are they persons, and if so, how are they entitled to equal protection, and against what?—to the voting rights of African-Americans in Alabama, as just decided by SCOTUS.
In fact, to recall the either/or terms I started with, the 14th Amendment can be, and has been, used for and against the constraints of traditional usage, whether of property or in the treatment of persons, the protection of which still describes what James Madison called the “two cardinal objects of Government, the rights of persons and the rights of property.” Since 1886 and the famously perfunctory Santa Clara SCOTUS decision, the 14th Amendment has been deployed by courts to protect the property of those “unnatural” persons we know as corporations created by law. Citizens United (2010), which granted corporations the 1st Amendment rights of free speech construed as the expenditure of money on behalf of personal political opinion, was the culmination of such efforts. Before then, however, in Munn V. Illinois (1877). it was used to declare that, in the words of the chief justice, “property does become clothed with a public interest when used in a manner to make it of public consequence.” And this declaration is now being deployed in various states to constrain fossil fuel companies from using their property to poison hundreds of thousands of persons.
In short, the Second Constitution summarized in the 14th Amendment is no less schizophrenic than the first, but the opposition of slavery and free labor—or the conflict between rights of persons as against property—which animated the debates about the first is now coded as the opposition of capitalism and socialism, and not just by right-wing nutcases like Matt Goetz and Marjorie Taylor Greene.
If that’s an either/or choice, as Goetz and Greene frame it along with most persons of a left-wing bent, our body politic will be riven by an unmistakably, inescapable schizophrenia comparable to the literary divide of “paleface and redskin” or “Cavalier and Yankee” or “hillbilly and hipster”—or, to make the stakes of the debate clear, “black and white.”
If the opposition between capitalism and socialism is not an either/or choice, why then, the 14th Amendment will serve as the legal but also intellectual device by which we can come to understand that each mode of production needs the other to sustain a social formation in which democracy is the means and the end of political deliberation. To put the matter in Madisonian terms, oligarchy arrives if we allow the rights of property to obliterate the rights of persons—if we “sacrifice the poor to the rich,” as he described the result, and as we might describe the current state of our laws as SCOTUS would interpret them—but, by the same token, rural idiocy or anarchy arrives if we extinguish the rights of property in the name of persons; for the most fundamental right of property resides in our legal claim to the control of our own bodies.
I'm sure I've said this before,but I'll say it again: The famous footnote in Santa Clara established corporate personhood. Ironically, that question wasn't even before the court. The "train" has been running, with no breaks, ever since.